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Supreme court justice explains history of water law

Some think crops waste of water

(This is the first part of a two-part series on a water forum held at Morgan Community College this week.)

In the 1970s, agriculture used 93 percent of Colorado's water -- but today it only uses 86 percent.

That shows how much water has been transferred to municipal and industrial use over the past 40 years, said Colorado Supreme Court Justice Greg Hobbs during a water forum sponsored by the Colorado Livestock Association at Morgan Community College Thursday.

Hobbs was at the forum to talk about the history of water law in Colorado.

People often talk about how complicated water law is in Colorado, but it is not really that complex.

"The complication is that we don't explain it," Hobbs said.

Morgan County dairy farmer Chris Kraft talks with Colorado Supreme Court Justice Greg HobbsÂ?just before the justice spoke on the history of water law in the state at Morgan Community College Thursday
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There are people concerned about pressures on the water in Colorado who do not understand why it is used the way it is in the state, he said.

He often hears that the trouble in Colorado is all those producers growing hay. They think farmers waste water because they see photos of flood irrigation, Hobbs said.

They do not understand the whole process of how water works and how it is used, he said.

They see flood irrigation and do not realize that much of that water goes back into the rivers, so it is not wasted, Hobbs noted.

In fact, Colorado has a more equitable way to handle water than the old law that came from Europe and is used in many other states, he said.

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In those places, they use "riparian law," which means landowners who are situated on the banks of streams and rivers are the ones that have the right to the water.

In Colorado, the people own the water, Hobbs said.

Water can only be used if it is used for a beneficial purpose, such as growing crops, manufacturing or drinking, he said.

Colorado is the "Mother of Rivers" for many states, since their rivers are filled with the water that drains off the Rocky Mountains, Hobbs said. Colorado can only use about a third of the water that comes off its mountains.

The first territorial water law formed in 1861 did not mention anything but agriculture, since mining did not really consume much water, he said.

This law provided a right to move water to where it was needed, and created a right of way to allow for ditches to take the water to farms as long as those using it paid for the right of way, Hobbs said. People need to be careful when they talk about private property rights. For instance, a landowner cannot block a person from operating an irrigation ditch.

In Colorado, people do not earn the right to water simply because they use it or divert it somewhere. It must be put to beneficial uses, he said.

When the first explorers and settlers came to Colorado, they considered the plains a wasteland, which is why the plains were called the Great American Desert, Hobbs noted.

The Union Colony (now called Greeley) tried to build gravity-fed irrigation ditches to change that, but failed. Later, Ben Eaton studied direct-flow ditches in New Mexico and came back to build ditches in what is now Weld County. The area flourished until 1874, Hobbs explained.

The South Platte River actually dried up. When the settlers went upstream to see what had happened, they found someone had diverted the water away from the river, he said.

That is the kind of situation that led to how water law is treated in the Colorado Constitution, Hobbs said.

Judges were given authority to adjudicate who had priority for water. That allows users to rely on a point of diversion, the amount of diversion, the type of use and the place of use, he said.

Water law in Colorado grew out of scarcity, and is still affected by how much water is available. When there is plenty of water running in the river, the subject of senior water rights does not come up, Hobbs said.

During the 1950s, new water pumps and electrification of rural areas made water wells feasible for farmers, but they were using water that effects the rivers, since it runs underground to the rivers, he said.

In 1969, a law was passed requiring augmentation plans to replace the water that is taken out of the ground, but not everyone followed that law. That is why some were shut down after the drought of the early 2000s, Hobbs said.

If people would have thought about it, they would have understood. If they had started using river water in the 1950s, they would have had very junior water rights. Wells are similar. They were dug in the 1950s and have junior rights, he said.

People need to respect how water is used, but it cannot be used just any way, Hobbs said.

For example, "domestic use" of water in cities does not mean urban residents can use water any way they want, he said. Traditionally, domestic use means drinking water, water for sanitation and a small amount for household agriculture such as food gardens or animals.

"The (Colorado) cities grew out of the farms," Hobbs noted. Agricultural water rights have been moving to cities since 1891.

A big area of contention has been the compacts Colorado has with downstream states. Colorado provides water to 18 states.

These began when Kansas disputed water rights with Colorado. Kansas said it was a "riparian state," and insisted water flows should not be altered. Colorado said it had prior appropriations of water, Hobbs said.

In 1902, the U.S. Bureau of Reclamation said they were both wrong, and that unappropriated water was reserved. The U.S. Supreme Court said that the law of interstate rivers required equitable apportionment -- and that the court would review how it was apportioned from time to time.

That could be a problem, since the Supreme Court has rarely had members from the West, Hobbs said. And if the court decided another state had prior appropriation, Colorado would lose out.

Then the compact clause of the U.S. Constitution was noticed. If the states made compacts, it took the process out of the hands of the Supreme Court, he said.

There are some prior rights that do complicate matters.

A treaty with Mexico following the Mexican-American War required the U.S. to honor land grants given before the U.S. occupied the land, for instance.

The U.S. Congress also allowed the president to withdraw forest lands from the Homestead Act, because forests protect rivers from out-of-control runoff that pollutes water, Hobbs explained.

Ute Indian tribes had a reservation that took up almost all of the Western Slope of Colorado. That meant it was not settled until the land was later taken away from the Utes, which made the water rights in that area junior.

Much later, the U.S. Supreme Court said that the Utes had rights senior to everyone else, since they had been given the land and water. That led to the 1986 Ute Water Right Settlement.

Occasionally, someone tries to take water rights in ways that are not allowed.

There were speculators who wanted to buy up rights, but not use them. They wanted to treat that water as a commodity, but that ignores the requirement of "use." Water must be put to a use for someone to have a right to it, Hobb noted.

There are also those who want to find ways to change the law.

Last year, a group started an initiative that would have required free access across land to launch boats in rivers, to keep the area clear for that use and to reallocate the water for recreational use. That initiative did not get enough signatures, but a constitutional amendment would change water law.

Federal courts have said that the federal government cannot change Colorado water law, but there are ways to get around it. For example, federal agencies might refuse permits for water use.

One person in the audience wondered why cities are allowed to send out water that is not as high a quality as what they took out of rivers. He said ag producers are seeing algae and weeds along ditches due to nutrients in the water.

Cities are required to put back "suitable water" in rivers, but what is suitable, Hobbs asked.

This is complicated, and growers need to be careful, because they put nutrients into water, too, he said.

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